One

why compare?

It may be easy enough to find striking examples of differences in criminal

justice, but what is less clear is how these can contribute to make up a
coherent subject matter. What is the comparative analysis of criminal
justice (good) for? In this chapter I first describe some of the theoretical
and policy goals of this subject and how the literature seeks to con-
tribute to them. I then go on to discuss how far this sort of work can
overcome the risks of ethnocentrism and relativism.

The goals of comparative criminal justice

There are a variety of theoretical and practical reasons for wanting to

know more about what others do about the sanctioning of offensive
conduct (Nelken, 1994b, 2002). Whatever misgivings they may have
about how their own system works, many people are even more suspi-
cious of what goes on when their fellow citizens end up being tried
in courts abroad. Such ethnocentric thinking can easily lead people to
assume a priori that their own local arrangements must be superior in
general, or at the very least better fitted to their own society. But, fortu-
nately, there are also those who have a more open-minded interest in
apparently strange ideas and practices, seeking to make sense of rather
than reject difference outright.
12 comparative criminal justice

Many writers seek to learn from other systems how to improve their
own. Hence we get articles with titles like ‘English criminal justice: is
it better than ours?’ (Hughes, 1984), or ‘Comparative criminal justice as
a guide to American law reform: how the French do it, how can we
find out and why should we care?’ (Frase, 1990). Those who undertake
studies of this kind seek to borrow an institution, practice, technique,
idea or slogan so as to better realise their own values, or sometimes to
change them. They may aim to learn from those places with high incar-
ceration rates what not to do, or they may seek to help others change
their systems, for example exporting new police systems to South Africa,
or restoring the jury system in Russia. Or again they may just be con-
cerned to cooperate and collaborate in the face of ‘common threats’.
But the vital practical importance of this subject brings us up against
one of the most troubling of questions regarding the goals of our com-
parisons. How far are we intending to learn more about our own system
and its problems, and how far are we trying to understand another
place, system or practice ‘for itself’? For some authors, we can choose
between seeking for ‘provincial’ and ‘international’ insights, or engag-
ing in ‘national’ and ‘cosmopolitan’ enquiries (Reichel, 2008; Zimring,
2006). For reform purposes, comparative researchers deliberately use
accounts of practices elsewhere as a foil. Lacey (2008), for example,
deploys evidence of differences in prison rates in Europe so as to prove
that growing punitiveness is not the only game in town and suggests
to UK politicians that they can find a way out of outbidding each other
on being ‘tough on crime’. In other cases, we may set out to understand
the other but end up knowing ourselves. As T.S. Eliot (1943) put it:

the end of our exploring,

Will be to arrive where we started,
And know the place for the first time.

What, on the other hand, could it mean to try to understand another

society only in ‘its own terms’? To a large extent it is impossible to make
sense of things except against some background of previous expecta-
tions. Someone from India will find Italian criminal justice relatively
efficient; someone from Denmark is unlikely to do so. Any cross-
cultural comparison emerges from a given cultural context and has to
 why compare? 13

be able to make sense to the foreign audience(s) for whom it is intended.

What is found interesting or puzzling will vary depending on local sali-
ence. But even questions couched in terms that are salient in both (or
more) cultures being compared will lead to different answers depending
on which culture one starts from. Reichel (2008) begins his book with
the dilemma faced by US police agents, who feel justified to continue
to pursue a criminal who has fled to Mexico because the police there
are notoriously corrupt. He admits that the Mexican government might
feel differently about such conduct. But one would imagine a rather
different take on the topic in a textbook written for Mexican students.
Even the society being reported on is likely to understand itself in
relation to points of similarity and difference in relation to some places
(those to which it compares itself) rather than others. Should we then say
that what is crucial in studying another place is less whether the author
has actually got it ‘right’ and more what the author makes of it? Perhaps
this is all that ‘learning’ from others means (and can mean)? Does it even
matter if, according to Johnson (2001), Braithwaite may not have prop-
erly grasped the Japanese criminal justice practices he used as a model for
his highly influential idea of ‘reintegrative shaming’ (Braithwaite, 1989)?
For example, after Balvig (1988) tells us that his aim was less to learn
about somewhere else than to understand his own country better. Taken
too far, however, this line of argument becomes self-defeating. The rea-
sons we make comparisons cannot provide the only criterion of success.
If we have failed to properly understand another system we can hardly
make use of ‘it’ to throw light on our own arrangements. Even if there
is no view from nowhere, this does not prove that all starting points are
of equal value. And seeing only what is useful for us is a poor way of
acknowledging and engaging with the ‘other’.
We also have to ask what, if anything, is specific about this subject.
It has been forcefully pointed out that all social science is concerned
with explaining variation and difference (Feeley, 1997). Comparison
was central to the work of both Durkheim and Weber, albeit with rather
different strategies. Many would say that comparison is the essence of
all social enquiries or even of logical enquiry in general. In principle,
then, no line can or needs to be drawn between criminal justice and
comparative criminal justice (or between criminology and compara-
tive criminology). In addition, the traditional focus of what is called
14 comparative criminal justice

comparative criminal justice on different national jurisdictions is mainly

a matter of political/legal convention and methodological convenience.
There are considerable political, social and cultural differences within
modern nation-states, for example within the USA (Newburn, 2006),
or Australia (Brown, 2005), and even more so in less industrialised socie-
ties. For some purposes other ‘units’, such as towns, organisations and
professional groups, can all provide occasions for comparison. And tran-
snational crime activities and responses to them help transform and
transcend differences between units defined as nation-states.
The local, the national and the international often interpenetrate. But
there may sometimes be good reasons to privilege the nation-state or soci-
etal level. States are the locus both for collecting criminal statistics and for
administration, and their boundaries often, though not always, coincide
with contrasts in language and culture. Franklin Zimring, a distinguished
American criminologist, explains that he became a ‘convert’ to compara-
tive criminology when discovering that Canada had not shared the rise
in US prison levels even though its crime rate was not much lower than
in the USA, with the exception of homicide and life-threatening robbery
(Zimring, 2006). As this example also shows, some of criminology’s major
debates now involve issues of comparative criminal justice.
Cross-national and cross-cultural research is a fundamental way to
show whether criminology’s claims are more than local truths (though
it does not exhaust this task, in so far as taken-for-granted starting points
are also conditioned by other factors, for example gender). But this
subject offers a number of other potential benefits (and challenges) that
go beyond simply adding to the pool of potential variables that can be
used in building criminological explanations. Trying to understand one
place in the light of another allows us to move closer to a holistic pic-
ture of how crime and its control are connected (what do they know of
England who only England know?) Likewise, it can help us appreciate
why reforms that are limited to those that emerge from within the same
society often tend to reproduce the problems they are being asked to
solve – precisely because they come from the same culture. Or, it may
help us understand the factors that explain why a given society goes
through cycles of corruption and anti-corruption.
In England and Wales, as in the Netherlands, the answer to failures
in the system is normally thought to be greater efficiency and speed
 why compare? 15

(as in reforms of the English Youth Justice system inspired by the reports
of the Audit Commission). In Italy, a rethinking or defence of ‘values’ is
more often invoked as the way forward when problems arise (thus the
‘obligatoriness’ of prosecution decision-making is usually argued about
as an issue of principle rather than as a question of learning from the
‘best practices’ of prosecutors as they struggle to deal with this unre-
alisable requirement (Nelken and Zanier, 2006). ‘Governing through
crime’ may be a particularly American obsession, but suggesting that it
be replaced with the metaphor of the fight against cancer still remains
firmly within the American ethos of instrumental problem-solving
(Simon, 2007). Miscarriages of justice arise both in more adversarial and
more inquisitorial types of process. But in each case it is their tendency
to count too much on the strengths of their procedures that danger lies
(Brants, 2010).
Comparative study can help us escape from self-sealing cultural log-
ics (Field and Nelken, 2007). There are a variety of strategies that can be
used. But each is also subject to pitfalls. Classifications can be contro-
versial, descriptions deceptive, explanations erroneous, interpretations
interminable, translations twisted, and evaluations ethnocentric. The
difficulties multiply in so far as a satisfactory account of difference usu-
ally requires the ability to draw on more than one of these strategies.
But the message of this book is that considerable progress can be made
in understanding and explaining other systems of criminal justice if
(but only if) we face up to these challenges.
Collecting data on legal rules, procedures and distinctive institutions
is certainly a valuable first step (one that is both demanding and time-
consuming, not least because of linguistic and conceptual difficulties). It
can be instructive to learn about the social role of policemen in Japan (as
well as the lesser known system of voluntary probation officers), or dis-
cover that the way chosen to stop traffic policeman in Mexico City taking
bribes from motorists was to appoint less threatening women rather than
men to do this job. Careful description can also help get beyond often
out-of-date classificatory stereotypes. In many respects, the Netherlands
has more similarities with the UK than with Italy, even though the UK
has a common law rather than continental system of criminal justice.
But the task of comparativists, unlike that of lawyers, cannot be that of
providing description for description sake. Even the effort to describe
16 comparative criminal justice

selected aspects of criminal procedure in Europe runs to over a thousand

pages (Delmas-Marty and Spencer, 2002).
Descriptions can provide the basis for explanation and understanding,
but for them to serve this purpose we must have an understanding of the
way the ‘law in action’ relates to the ‘law in books’. This essential work-
ing tool for all social studies of the law was in fact first put forward in the
context of studying police (mis)use of criminal procedure. Likewise, the
distance between what continental systems of criminal justice claimed to
be doing and what research into the law in action showed they were actu-
ally doing was the nub of the classical debate about ‘the myth of judicial
supervision’ in continental criminal procedure. The leading recent empir-
ical in-depth study of French criminal justice, by Jacqueline Hodgson,
also places stress on how little actual supervision of police is exercised by
continental prosecutors (Hodgson, 2005).
If we are worried that some criminal justice systems allow the state
to use psychological pressure against defendants (Vogler, 2005), a closer
look at what goes on in police cars will quickly show us that this is not
a problem restricted to the inquisitorial system. Empirical research has
shown that it was rarely necessary to pass ‘telephone justice’ messages
to judges and prosecutors to ensure politically appropriate outcomes of
trials in communist East Germany. The methods used to appoint and
socialise recruits to these offices was sufficient (Markovits, 1995). More
recently, by contrast, corruption investigations in post-communist
Poland were themselves used ‘corruptly’ against political adversaries
under direct government impetus (Polak and Nelken, 2010). As this sug-
gests, rules and safeguards can even operate in ways that are the opposite
of what are said to be their justifications. The procedures in Italy that are
supposed to protect offenders’ rights to know as soon as possible that
they are being prosecuted (the ‘avviso di garanzie’ notice) ends up hav-
ing the effect of facilitating ‘trial by media’ (Nelken and Maneri, 2000).
Paying attention to the ‘law in action’ is also relevant to making sense
of all three of the running examples being used in this book. The reason
why young people in Italy, in some respects, ‘get away with murder’ is
that the 1989 reform of juvenile justice was a procedural one brought
in at the same time as the introduction of the major procedural reform
in that year for adults. It did not change the substantive penalties on
conviction available for serious offences by young people, which remain
 why compare? 17

(in this country where children are so much loved) only prison. The two
most important new measures that were introduced – ‘irrelevance’, for
cases that were deemed too trivial for further prosecution (an essential
filter in a regime of obligatory prosecution and one not yet available for
adults), and ‘putting to the test’ (messa alla prova), a type of probation
with in-built requirements of work, schooling etc. – had therefore to be
pre-trial procedures – ways of putting off and avoiding trial. It is because
messa all prova is available for all crimes that prosecutions for murder
too often end up without going to trial provided the conditions of
pre-trial probation measures have been successfully met.
Likewise, to make sense of obligatory prosecution, it is necessary to
learn how Italian prosecutors actually behave, given the impossibility
for handling all the cases on their desk simultaneously. Who or what
is it that de facto decides priorities – the prosecution office or the single
prosecutor – and on what grounds? The rule of obligatory prosecution
can in practice strengthen the hands of prosecutors who give priority
to some classes of cases rather than others (Nelken, 1997b; Nelken and
Zanier, 2006). Finally, to understand the times taken by trials, it is vital
to appreciate the workings of the system’s own cut-off points for undue
procedural delay. This so-called period of prescription, within which a
case must run its course, applies right up until the hearing of appeal
in the final court, after three stages of trial and any number of possible
procedural objections. So defence lawyers often try less to prove their
client’s innocence than to make the case overrun it’s allocated time.
For many criminologists, the main interest of comparative criminal
justice lies in the help it affords for formulating and testing explanatory
hypotheses about levels of incarceration rates, the retention of the death
penalty, or whatever. Those looking for explanations of differences in
criminal justice practices that translate quickly into policy arguments
may be disappointed, however. Asking which penal disposal is better at
reducing crime turns out to be more complicated than ever when asked
across a range of countries, many of whose criminal justice systems seem to
give low priority to this goal. We first have to understand why that should
be the case. It has been argued that even countries like the USA, which
claim to be most concerned with reducing recidivism, are less concerned
with crime in its own right than with larger issues of social and moral
discipline (Simon, 2007). And critics of penal policies may likewise be
18 comparative criminal justice

as interested in wider questions of how to create a better society as they

are in crime rates as such. In this field explanatory and evaluative issues,
what works and what is right are rarely easily separated.
Those with a normative agenda may seek to assess criminal justice
systems as a whole. Is the problem that too many people are being sent
to prison, or too few, or does all depend on which offenders we are
speaking about? There are also interesting differences between criminal
justice systems in what kind of evaluation, if any, is seen as appropri-
ate for different actors in the system. Should judges be evaluated, by
whom, for what conduct, and for what purpose? (Mohr and Contini,
2008). More commonly, commentators examine what goes on at a given
‘stage’ of criminal justice, or in one of its constituent organisations or
networks. But because criminal justice practices are sites for contesting
values, in order to make sense of what criminal justice agents are trying
to do, we need to make sense of their normative commitments and will
often be providing contestable interpretations of their behaviour.
In Anglo-American systems, for example, it is debatable and debated
when plea bargains are to be considered the result of unfair pressures.
Getting our normative bearings can be even more difficult in unfamiliar
contexts. In Italy, some judges in corruption cases imprison those who
refuse to confess, arguing that extracting a confession is the only certain
way they have of being sure that the offender will no longer be trusted
by his associates (and so be unable to repeat the offence). But many
commentators see this as an abuse of criminal procedure. Should ‘we’
take one side or the other (and who are ‘we’)? How much allowance
should be made for the larger context of political corruption in which
judges find themselves, or for particular historical circumstances such as
those that characterised the Tangentopoli anti-corruption investigations
(Nelken, 1996, 1997b)?

Beyond ethnocentrism and relativism?

To make progress both in learning about and evaluating other systems

of criminal justice we need to bear in mind two dangers. On the one
hand, there is the risk of being ethnocentric – of ‘confusing the familiar
 why compare? 19

with the necessary’. Here we fall into the trap of assuming that the links
between social factors, crime and criminal justice that we find persua-
sive are also ones that apply generally, and that what we do, our way
of thinking about and responding to crime, is universally shared, or,
at least, that it would be right for everyone else. Alternatively, there is
the temptation of relativism. Here the claim is that we can never really
grasp what others are doing, or that there can be no transcultural basis
for evaluating whether what they, or we, do is right (see, for example,
Beirne, 1983/1997; Leavitt, 1990/1997; Cain, 2000b; and Sheptycki and
Wardak, 2005).
For some leading post-war authors the point of comparative work
was precisely so as to ‘uncover etiologic universals operative as causal
agents irrespective of cultural differences between different countries’
(Szabo, 1975: 367). The search for such generalisations continues.
Authors seek to show that certain social groups or categories tend to
be more punitive than others, or that similar forms of criminal con-
duct are, as a matter of fact, universally disapproved to similar degrees.
Claims are made that, cross-culturally, people have similar preferences
for fair trial processes and shared intuitions about how institutions such
as the police must behave if they are to be considered legitimate (Lind
and Tyler, 1988). A well-organised criminal justice state that reflects
such public preferences is seen as the best way of helping victims of
criminal behaviour (Newman, 1999).
The currently renewed interest in establishing and spreading
‘evidence-based’, transcultural knowledge of ‘what works’ in respond-
ing to crime (Sherman et al., 1997) is an important example of the
search for universalistic knowledge in this field. On the one hand,
this represents a valuable attempt to reverse the unwarranted, and
partially unintended, pessimism induced by the earlier slogan that
‘nothing works’ in terms of dealing with offenders. But this type of
‘globalising criminology’ can also be less culture-free than it pur-
ports to be (Nelken, 2003a). Strengthening dysfunctional families
is seen as the major route to reducing crime. Yet Mafia groups, like
those of corrupt politicians and all groups of collaborative crimi-
nals, seem, if anything, to suffer from having too strong family or
family-like ties. This approach also often gives insufficient attention
to what different cultures mean by ‘working’ (especially in reference
20 comparative criminal justice

to the procedures of criminal justice), as well as for whom it is that

crime prevention and criminal justice is supposed to work.
By contrast, there are authors who contest this search for universals
and suggest the point of comparative research is rather to undermine the
pretensions of positivistic criminology. For them, careful examination of
foreign criminal justice practices suggests that it is, above all, the certain-
ties buried in universalising approaches to explanation, such as the claim
that all systems find ways of relieving caseload pressures, or that criminal
law must always serve the interests of the powerful, that turn out to be
cultural rather than scientific truisms. Differences between what societies
define and treat as crime can be striking – and not only in the obvious
areas of political and sexual deviance. The USA is still sending people to
their death in the electric chair, but, in 2008, a fairground owner in Italy
was convicted of a crime against public decency for exhibiting a pretend
one! The same applies to solutions to deviance. Writers in the UK are
convinced that military-style policing always alienates police from the
community and so cuts down the supply of information. But in Italy
the fact that the militarised carabinieri live in barracks apart from society
is seen as a guarantee of their independence from potentially corrupt-
ing local ties. This is especially important in the South where organised
crime groups hold so much sway.
Deciding what is ethnocentric or relativistic is not always straight-
forward. It is, of course, not ethnocentric to have value preferences –
only somewhat suspect if these simply coincide with those we have
been brought up to believe in. Thus American textbooks tend to warn of
the price that countries such as Saudi Arabia or Japan pay for their low
crime or low prison rates. Yes, Saudi Arabia has less crime, but ‘we’ would
not want to have as little ‘freedom’ as they do. It is true that Japan has
low levels of incarceration but some of the things the Japanese do in
their criminal process to make this possible we would not find accept-
able, and, more generally, ‘their ‘conformist way of living is not for us
(Dammer, Fairchild and Albanese, 2005: 9).
It is moot whether we can use Anglo-American categories, such as
‘due process’ versus ‘crime control’ (Packer, 1964), or speak of ‘justice’
versus ‘welfare’, as if they referred to universal predicaments. A surprising
example of what can be seen as an ethnocentric approach is provided by
the great criminologist Edwin Lemert, one of the inventors of the social
 why compare? 21

reaction and labelling approach, and also a specialist in juvenile justice.

In a widely reproduced paper about the Italian system, Lemert noted the
enormous disproportion between the number of juveniles arrested and
processed in the USA and in Italy. But, rather than see this as an indict-
ment of the American approach, he argued that the Italian system was
what he called a ‘spurious’ example of juvenile justice because it could
not be seriously considered as trying to implement a welfare system for
juveniles on the American model (Lemert, 1986). As it turned out, it
was the USA that moved away from the welfare model that the Italian
system has been steadily consolidating (Krisberg, 2006).
An emphasis on the importance of diversity and the particular is
not the same as relativism (Dembour, 2006). Different arrangements
may indeed – rightly – be appropriate under different conditions, and
changing conditions may also alter the relevance over time of given
values even within the same culture. Roach, for example, argues that
the rise of victims’ groups challenges the continued utility of Packer’s
categories, even in Anglo-American settings, by showing that these were
focused only on the roles of the state and the accused (Roach, 1998).
Even if some practices work well locally, they may not be easily transfer-
able. It is hard to imagine other places copying the Japanese in seeking
to reform a rapist by telling him to write a haiku (Johnson, 2000). But
their wider applicability should not be confused with understanding
how they work as they do in loco. If the question was how the conti-
nental methods of control over the police would work in the USA, then
Goldstein and Marcus were right that such methods would be insuffi-
cient to avoid potential abuse (Goldstein and Marcus, 1977). But, in so
far as the issue was rather trying to understand what other places were
actually trying to do, and sometimes succeeding in doing, in the context
of their own structures and expectations, then Langbein and Weinreb had
the better of the argument (Langbein and Weinreb, 1978).
Conversely, if we wish to avoid ethnocentrism, it is not sufficient
to be critical of our own practices. This too can be formulated in ways
that take for granted local values which are then projected on ‘better’
systems elsewhere (e.g. Pizzi, 1999). It is often helpful to ask whether
we may have fallen into the so-called ‘evil causes evil fallacy’ (Cohen,
1970). Just as it can be a mistake to assume that the causes of crime
must necessarily be other objectionable matters, we need to be open
22 comparative criminal justice

to the possibility that aspects of criminal justice that we disapprove of

may be connected to positive and not only negative factors (and vice
versa for matters we approve of). Criminologists who try to explain
which states in the USA have the highest prison rates tend to single
out factors that most criminologists would consider negative in their
own right, such as lower welfare levels, less effort to ensure economic
equality, and less public participation in political life, or the power of
only certain groups to participate where it matters. But this can also be
linked to the rise in concern for victims, or the introduction of deter-
minate sentencing through sentencing guidelines. To a limited extent
even the effort to abolish or limit the use of the death penalty can
increase the use of prison (Gottschalk, 2006). Prison building restarted
in the Netherlands in part so as not to abandon the principle of one
person to a cell. It has been suggested that egalitarianism in the USA
led to an increase rather than a reduction in levels of state punishment
(Whitman, 2003; Nelken, 2006e).
More individualist and more collective societies can each have their
own sort of pathologies, for example dealing with difference by exclud-
ing it or by enforced assimilation (Young, 1999). Assuming that places
with lower prison rates necessarily operate more ‘inclusive’ systems of
social justice can be the kind of short-cut that can easily lead to a dead
end. Learning from what others do is not so straightforward. On closer
acquaintance we may well find that we like the result achieved by other
systems of criminal justice, but not the means they use to get there, or
vice versa. (In Italy it is the politicians’ sense of their vulnerability to
criminal prosecution that helps explains why criminal procedure is so
complicated, and hence why less people end up in prison than might
otherwise do so).
The need to give attention to the local and the particular does not
mean that we cannot ever talk about ‘best practice’, as evaluated accord-
ing to widely shared standards. Even if considerable caution needs to
be used in interpreting cross-national ratings, some places may be
doing better or worse in terms of such standards. If one in ten children
in Denmark who grow up in local government care homes go on to
further education, whereas in the UK only one in a hundred do so,
then we would do well to try to learn how this is achieved. But com-
parative research should not be treated only as a means of identifying
 why compare? 23

universally valid best practices to be adopted wholesale. We can also

explore what happens elsewhere so as to engage in ‘internal critique’
according to our own standards. Those in common law systems could
learn that paying more attention to ‘due process’ considerations could
also help achieve the goal of ‘crime control’ (by increasing legitimacy,
public confidence and cooperation). Conversely, French authors could
discover that strengthening the role of defence lawyers in their system
could help increase the chances of truth emerging from the process – a
key value for them.
What this implies is that the best practice for ‘us’ to learn from may not
always be best practice as such, but rather that which stretches our imagi-
nation about what is possible. Moving a little nearer to what we would
otherwise never normally think of doing may be just what is needed.
It may seem obvious to many observers of Italy (as well as to some
Italians) that the Italian criminal justice system could benefit from
increased pragmatism and managerialism. But vice versa, Italy may
have something important to teach more pragmatic countries about
the possible counter-productive consequences of too much concern for
‘efficiency’ in their penal systems.
Take the three running examples being used in this book. The Italian
juvenile system may seem to offer insufficiently robust procedures for
dealing with the type of problem situations that Anglo-American sys-
tems face. But, in England and Wales, the government’s recent stress on
dealing with caseloads more expeditiously mainly led to a substantial
rise in youth custody, in contradiction to its general commitment to
reduce this number. As far as the rule of obligatory prosecution is con-
cerned, it is not obvious that those who want to bring about a more
equal society can or should immediately seek to achieve this by opting
for the Italian rule of mandatory prosecution. Even the Italian system
achieved the effects it did only during an exceptional period of political
transition, though it is also fair to add that the judges themselves played
an important part in bringing about that transition. Under ‘normal’ cir-
cumstances, the degree of independence possessed by Italian prosecutors
can lead to continual and distracting tests of strength with governments,
which weakens collaboration in organising much needed reforms of the
criminal process. Nonetheless there may be much to be learned – for
countries where prosecution is less independent – about the different
24 comparative criminal justice

possible meanings of prosecutorial independence, and the social and

political preconditions and consequences of such independence.
The example of Italian trials raises even more issues. Certainly, justice
delayed may often simply be justice denied. Delay reduces the chance
of conviction because of its implications for the witnesses’ memories,
willingness to collaborate, vulnerability to being got at, etc. Once it has
accumulated, delay itself produces more delay and uncertainty, and,
because final trial verdicts are so slow in coming, Italy is increasingly
experiencing trial by media as the daily newspapers treat even informa-
tion about the earliest stage of an investigation as a token of presumed
guilt. But, in so far as delay is produced by given rules of criminal pro-
cedure, this should lead us to think more carefully what ‘due process’
(what the Italians call garanzie) should actually require. How many
stages of appeal should there be? How much need is there for separate
scrutiny at each stage by different judges (and how appropriate is it
to restrict all such decisions to legally trained people)? Why is it not
enough to trust to the system’s own internal legal definition of when
cases have overrun the time in which they must be disposed of?
We can even ask whether slowness can ever have value. At a confer-
ence in Padua on the topic of legal delay in which I participated, it was
surmised that delayed trials could give victims time to get over their
upset so as not be so emotional. This may seem less strange a sugges-
tion if we treat criminal justice, as one important progressive Italian
theorist does, as primarily a means to restrain vendetta in the interest
of the offender (Fellajoli, 1989; Nelken 1993). This is certainly a very
different perspective from the current trend to make the victim and his
and her feelings play a more central role. Criminal justice also reflects
wider social values. A more efficient or speedy court system in Italy
would often come into conflict with a social structure and culture in
which many people place reliance on slowly built-up forms of group
co-optation and clientalist sponsorship, sometimes even in defiance of
legal rules. On a more positive note, Italy has been called the spiritual
home of the slowness movement, the call to all of us to slow down so
as to get more out of life (Honoré, 2004). Perhaps slow food and fast
trials are incompatible?